Carcary v Willoughby City Council

[2003] NSWLEC 395

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Land and Environment Court

of New South Wales

CITATION:

Carcary v Willoughby City Council [2003] NSWLEC 395

PARTIES:

APPLICANT
Karen Joy Carcary

RESPONDENT
Willoughby City Council

FILE NUMBER(S):

10492 of 2003

CORAM:

Moore C

KEY ISSUES:

Development Consent :-
"Substantially the same" development
.

LEGISLATION CITED:

Environmental Planning and Assessment Act , s96(2)

CASES CITED:

DATES OF HEARING:

04/09/03

EX TEMPORE
JUDGMENT DATE :

09/04/2003

LEGAL REPRESENTATIVES:

APPLICANT
Self represented

RESPONDENT
Mr D Parry, barrister
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES 10492 of 2003

Moore C

4 September 2004

Karen Joy Carcary
Applicant

v

Willoughby City Council
Respondent

Judgment

1 . There is in evidence before me in this application pursuant to s 96 of the Environmental Planning and Assessment Act an exhibit from the council, which is exhibit 4. It contains comparative elevations of that which has been approved by the consent of the council and that which is proposed to be achieved by the modification application presently before the Court pursuant originally an appeal against a deemed refusal - a deemed refusal which has subsequently been confirmed as an actual refusal by resolution of the council.

2 . The applicant, Ms K Carcary, who appears in person, has questioned some elements of the scaling of the exhibit and I set them aside from my consideration - particularly the issue of whether there is in fact a significant difference between the proposed upper ridge heights. According to the council, these would be 7 m above the agreed ground level in the approved application and 7.7 m in the proposal; whereas Ms Carcary says that it is approved at a level of the order of 7.5 m and would be of the order 7.5 m to 7.7 m on the amendment.

3 . Setting that issue aside, a consideration of each of the elevations makes it clear that there is a significant presentational difference both in appearance and in substance from that which has been approved by the council and that which is proposed by the s 96 application. In particular, the critical element on the council’s submission is that the south elevation - that which generally faces Mowbray Road - is the most important elevation in the context of the conservation zone. In determining whether the matter is something which complies with the provisions of s 96(2), I in no way make a judgment as to whether the matters which are proposed by the applicant, if submitted as a separate development application to the council, merit or do not merit approval. That is a matter for consideration appropriately by the council and if necessary subsequently by this Court on a development application dealing with those matters.

4 . However, I am satisfied that the presentation of a more dominantly featured southern elevation, together with the significant changes to the eastern and western elevations with the obvious visual prolongation of the upper bulk of the proposed dwelling is such as to have the proposed modifications not satisfy the tests pursuant to s 96(2) to enable me to proceed further to deal with the merit issues.

5 . Therefore, the orders of the Court will be:

1. The appeal is dismissed;
2. Application pursuant to s96 of the Environmental Planning and Assessment Act 1997 to modify an approval for construction of a dwelling house at 287 Mowbray Road, Willoughby is refused; and
3. The exhibits, except Exhibits 4 and 6, may be returned.
Tim Moore
Commissioner of the Court